|Diocese Ordered to Pay Court Costs in Mistrial
By Adam Silverman
Burlington Free Press
October 6, 2007
The statewide Roman Catholic Diocese of Burlington must pay more than $112,000 in legal fees for causing a mistrial in a priest-sex-abuse lawsuit this summer, a Chittenden County judge ruled Friday night.
Judge Ben Joseph issued his decision, which diocesan attorneys were quick to condemn, only days before jury selection is set to begin in the retrial of proceedings brought by James Turner of Virginia Beach, Va.
Turner, whose lawyer filed the demand that the diocese pay court costs, alleges the diocese did nothing after learning a former Vermont priest molested him at a Latham, N.Y., motel in 1976 after a religious and family celebration of his brother's pending ordination as a priest.
The payment was necessary, Joseph wrote in a four-page opinion, because lead diocesan counsel David Cleary repeatedly and willfully violated a pretrial order not to question Turner about the nature of an allegedly sexual relationship between the priest, the former Rev. Alfred Willis, and Turner's brother.
"In order for pre-trial rulings to have meaning, costs must be imposed when a mistrial is caused by a deliberate violation," the judge wrote. "This trial involved issues of great importance -- whether or not the Roman Catholic Diocese of Vermont is legally responsible for the sexual abuse of a child who was allegedly molested by one of its priests."
In an interview late Friday, Cleary said the ruling was an ill-timed example of the clash between the diocese and Joseph throughout this and other, similar lawsuits. Cleary said he will appeal "without question."
"This decision completely avoids not just some but all of the arguments put forth by the diocese and the true context of what this judge permitted counsel to do during the trial," Cleary said. "It's no secret that this particular judge and the diocese and its counsel have been at very serious odds over many issues and his approach to justice."
The diocese had argued in court papers opposing the request for costs that Joseph never said he disapproved of the line of questioning during the June trial, and he never should have ruled out the tactic. Diocesan attorneys also argued Joseph declared the mistrial at Turner's request, and it was too extreme a sanction.
Turner's attorney, Jerome O'Neill, countered in court filings the assessment of costs is justified because Cleary knew he was violating Joseph's pretrial order, and by doing so made Turner appear evasive to the jury, requiring a mistrial.
O'Neill could not be reached for comment Friday night.
Willis settled separately with Turner last year and is no longer a defendant in the case.
Joseph awarded Turner $4,464.98 for his costs associated with the trial, and the law firm that represented him, O'Neill, Kellner & Green, $107,985.19. The total is $112,450.17.
The judge wrote Cleary's violation had "many bad effects," including requiring Turner to endure another difficult proceeding and causing the delay of 25 other pending cases against the diocese. Further, Joseph wrote, Cleary's misconduct -- which he suggested should be referred to the Professional Conduct Board -- gave the diocese "considerable tactical advantages" in the retrial.
"The defendant's attorneys have been able to hear the direct testimony of the plaintiff's witnesses and to cross-examine them in a trial setting," Joseph wrote. "This has given defense counsel a rare opportunity to weigh and measure the strength of a plaintiff's case and to analyze how to attack it in a second trial. The plaintiff has not had such an opportunity."
Cleary took issue with Joseph's reference to formal judicial discipline and the chance the judge's remark might contaminate the jury pool by portraying Cleary a negative light.
"I indeed resent greatly what I believe to be a totally unwarranted attack on my personal integrity, particularly given the timing of the decision," Cleary said.
The retrial is scheduled to be heard by a different judge, Matthew Katz. Although jury selection is scheduled to begin Tuesday, the weeklong trial is not slated to convene until Nov. 26.
Contact Adam Silverman at 660-1854 or email@example.com
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